Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 109

Additional powers of Tribunal

109. Additional powers of Tribunal



(1) In addition to its powers under section 108, the Tribunal, in determining
a consumer dispute or a trader-trader dispute, may make any order it considers
fair including declaring void any unjust term of a contract or otherwise
varying a contract to avoid injustice.

(2) In determining whether a term of a contract is unjust under subsection
(1), the Tribunal may have regard to-

   (a)  the intelligibility of the contract generally, and of the term in
        particular;



   (b)  the extent to which the term, and its legal and practical effect, were
        accurately explained to the relevant party before the term was agreed
        to and the extent to which the relevant party understood the term and
        its effect;

   (c)  the relative bargaining power of the parties to the contract;

   (d)  the consequences to the parties to the contract if the term is
        complied with or not complied with and the relative hardship of those
        consequences to each party;

   (e)  whether or not it was reasonably practicable for the relevant party to
        reject, or negotiate for a change in, the term before it was agreed
        to;

   (f)  the relationship of the term to the other terms of the contract;

   (g)  whether the relevant party obtained independent legal or other expert
        advice before agreeing to the term;

   (h)  whether unfair pressure, undue influence or unfair tactics were used
        to obtain the relevant party's consent to the contract or the term;

        (i)    whether at the time the term was agreed to the relevant party
               knew, or could probably have found out by asking, that the term
               would cause any other relevant party hardship;

   (j)  the conduct of the parties to the contract after the term was agreed
        to;

   (k)  whether the term is usually found in contracts of that kind;

   (l)  the justification for the term;

   (m)  whether the term is unconscionable, harsh or oppressive;

   (n)  any other factor the Tribunal thinks is relevant.

(3) Despite anything to the contrary in this section, in determining whether a
term of a contract is unjust, the Tribunal is not to have regard to any
injustice arising from circumstances that were not reasonably foreseeable when
the term was agreed to.

(4) In this section-

consumer dispute means a dispute relating to the supply or possible supply of
goods or services of a kind ordinarily used for personal household or domestic
purposes but does not include a dispute relating to the supply or possible
supply of goods if the supply or the possible supply of the goods is for the
purpose of re-supply, in trade or commerce, or for the purpose of using the
goods up or transforming the goods in trade or commerce;

trader-trader dispute means a dispute between a purchaser or possible
purchaser and a supplier or possible supplier in relation to the supply or
possible supply of goods or services in trade or commerce which involves-

   (a)  a claim for payment of money in an amount not exceeding $10 000; or

   (b)  a claim for performance of work of a value not exceeding $10 000.